CBI: ‘caged parrot’, and an illegitimate one at that

The Central Bureau of Investigation came into existence based on April Fool’s Day 1963 Resolution of the Ministry of Home Affairs. Over the past few months, we have seen the CBI live up to its founding day with great zeal, being in the news for unprecedented and wrong reasons.

The Resolution stated that the CBI would investigate “crimes at present handled by the Delhi Special Police Establishment, including important cases under the Defence of India Act and Rules, particularly of hoarding, black-marketing and profiteering in essential commodities…the collection of intelligence relating to certain types of crimes; participation in the work of the National Central Bureau connected with the International Criminal Police Organisation; the maintenance of crime statistics and dissemination of information relating to crime and criminals; the study of specialised crime of particular interest to the Government of India or crimes having all-India or interstate ramifications or of particular importance from the social point of view; the conduct of Police research, and the coordination of laws relating to crime.”

And it goes on to say, “As a first step in that direction, the Government of India have decided to set up with effect from 1st April, 1963 a Central Bureau of Investigation at Delhi with the following six Divisions, namely (i) Investigation and Anti-Corruption Division (Delhi Special Police Establishment) (ii) Technical Division (iii) Crime Records and Statistics Division (iv) Research Division (v) Legal Division and General Division (vi) Administration Division.”

The expression, “As a first step in that direction,” appearing in the Resolution goes to show that the CBI was constituted as an ad hoc measure to deal with certain exigencies, not through ordinance or legislation, but through an executive decision, without citing or referring to the source of power. The Resolution does not refer to any provisions of the Delhi Special Police Establishment (DSPE) Act, 1946, as the source of its power. Therefore, the CBI cannot be treated as an organ arising out of the DSPE Act. Even the designation of ‘Director-CBI’ does not find a mention in the DSPE Act, 1946.

How then does the CBI become a police force vested with the powers of registration of a criminal offence, search, seizure, arrest and filing of a charge sheet in criminal court under the Criminal Procedure Code (Cr PC)? By a smart sleight of hand, a police force called the CBI was created, without consulting the state governments, even though Police is a state subject as per the Constitution.

When the Central Vigilance Commission Act, 2003 was passed, in Section 26 of that Act, an amendment was made to Section 4 of the DSPE Act by substituting Section 4(3). The amendment reads as follows: “The administration of the said police Establishment shall vest in an officer appointed by the Central Government, (herein after referred to as the Director)…” It may be noted that the word ‘Director’ does not have the suffix ‘CBI’ in this amendment.

In WA No 119 of 2008, Navendra Kumar versus Union of India, the Gauhati High Court, in its order of November 6, 2013, held that the “CBI is neither an organ nor a part of the DSPE and the CBI cannot be treated as a ‘police force’ constituted under the DSPE Act, 1946…We hereby also set aside and quash the impugned Resolution, dated 01.04.1963, whereby CBI has been constituted.”

This decision was challenged in a special leave petition by the Centre. On November 9, 2013, the then Chief Justice of India, who took up the petition at his residential office, stayed the order of the Gauhati High Court. Since then, there has been no further movement in this matter. Strangely, no questions appear to be raised on this issue by political parties, state governments, think tanks or the legal fraternity.

No legal legs

So clearly, within our governance structure, we have an untenable investigation outfit called the CBI, sometimes termed as the “premier investigation agency” of India, and at other times termed as “a caged parrot”, which has no legal legs to stand on. It has been constituted through a Resolution, a mere Executive Order, without cover of a legal statute; it acts as a police force and performs investigation functions under the CrPC, without any source of legitimate power, as is clearly brought out in the Gauhati High Court judgement. The Director-CBI is legally a persona non grata, as his designation appears nowhere — neither in the DSPE Act nor in the Central Vigilance Commission Act, 2003 — and the source of his police powers is not traceable!

I recently read an interview by former Supreme Court judge Justice Chelameswar, taken from a session titled ‘Caged Birds: Institutions under assault or Operation Clean-up?’ during the India Today Conclave 2019 in New Delhi. This is what he said, “The very legal basis of the CBI was doubted by the (Gauhati) High Court some years back. It said the CBI lacks legal backing. The judges may be right or wrong, but this is too serious a matter and the Supreme Court didn’t find the time to decide it... Sitaram Yechury had moved a private member bill to create a statutory body, which was shot down by the government of the day. Nobody would have it. Everybody wants a flexible organisation! That is the nature of power.”

Recently, the country has seen for itself the unprecedented and shocking ‘civil war’ within the CBI, its siege by the Delhi Police, and the rot and atrophy that has set in in India’s “premier investigation agency.”

The rule of law and good governance, both principles enshrined in our Constitution, demand that the grey legal status of the CBI should be brought to an end at the earliest and its responsibilities, functions and accountability be stated in specific terms by law.

(The writer is former DGP, Karnataka)